Citation Nr: 1510317
Decision Date: 03/12/15 Archive Date: 03/24/15
DOCKET NO. 12-08 669 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas
THE ISSUES
1. Entitlement to service connection for ischemic heart disease.
2. Entitlement to service connection for diabetes mellitus, type II.
3. Entitlement to service connection for an acquired psychiatric disability (claimed as depression and posttraumatic stress disorder (PTSD)).
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
L. S. Kyle, Associate Counsel
INTRODUCTION
The Veteran served on active duty from January 1967 to March 1969, including one year and two months of service in the Republic of Korea (ROK).
This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2005, September 2009 and June 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.
During the course of the appeal period, the Veteran has sought service connection for an acquired psychiatric disorder, variously claimed as depression and PTSD. The AOJ initially denied the Veteran's PTSD claim in a February 2005 rating decision, and he filed a timely notice of disagreement (NOD) regarding the decision. The AOJ issued several supplemental statements of the case as the Veteran submitted additional evidence regarding the claim, and the claim remained on appeal.
In March 2009, the Veteran claimed entitlement to service connection for depression. The AOJ denied the Veteran's depression claim in a September 2009 rating decision, along with his diabetes claim. These issues were certified to the Board in June 2012 after the Veteran perfected an appeal. As a claim for service connection for an acquired psychiatric disorder encompasses all psychiatric symptomatology, the appeal also encompasses the Veteran's PTSD claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009).
The June 2010 rating decision reopened the Veteran's claim of entitlement to service connection for ischemic heart disease due to new and material evidence, as the claim had been previously denied in April 2002. Effective February 24, 2011, VA amended its adjudication regulations to extend a presumption of herbicide exposure to certain Veterans who served in Korea. 38 C.F.R. § 3.307(a)(6)(iv) (2014). The Veteran was entitled to de novo adjudication of the claim without the need for new and material evidence due to the promulgation of a liberalizing regulation since the date of the initial denial. See Pelegrini v. Principi, 18 Vet. App. 112, 125-27 (2004). However, the Veteran was not deprived of any due process as the AOJ reopened his claim and reviewed it de novo before denying the claim because it could not verify his exposure to herbicides while serving in Korea.
The Veteran appeared at a hearing before the undersigned via video conference in November 2014. A transcript of the hearing is of record.
FINDINGS OF FACT
1. The Veteran did not serve in a unit in Korea for which herbicide exposure can be presumed, and the weight of evidence is against a finding that he was otherwise exposed to herbicides during service.
2. The Veteran's currently diagnosed ischemic heart disease did not manifest within one year of service, and the disease is not the result of a disease or injury in service.
3. The Veteran did not manifest any symptoms of diabetes mellitus, type II, within one year of service, and the disease was not a result of disease or injury in service.
4. The Veteran's claimed in-service stressors are inconsistent with the places, types, and circumstances of his service and are not supported by credible evidence.
5. The Veteran's currently diagnosed depression is the result of an in-service event or injury.
CONCLUSIONS OF LAW
1. The criteria for service connection for ischemic heart disease have not been met. 38 U.S.C.A. §§ 1110, 1112, 1116 (West 2014); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309 (2014).
2. The criteria for service connection for diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1116; 38 C.F.R. § 3.303, 3.304, 3.307, 3.309.
3. The criteria for service connection for PTSD have not been met. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304.
4. The criteria for service connection for depression have been met. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).
Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). In this case, the AOJ sent the Veteran letters in August 2008, December 2009, May 2010, and October 2010 that fulfilled the VCAA notice requirements for his claims. See 38 U.S.C.A. § 5103; Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 C.F.R. §3.159(b).
VA has also satisfied its duty to assist. The AOJ obtained the Veteran's service treatment records, as well as his medical records from private and VA facilities. The AOJ attempted to obtain potentially relevant records from the Social Security Administration (SSA), but a response from SSA indicated the medical records associated with the Veteran's SSA claims file were destroyed. The AOJ also attempted to confirm details regarding the Veteran's service in the ROK with the Joint Services Records Research Center (JSRRC) and the Defense Personnel Records Image Retrieval System (DPRIS), including any potential herbicide exposure and his alleged PTSD stressors.
VA also provided a VA examination in January 2009, which confirmed previous diagnoses of ischemic heart disease. However, the examiner did not find that the Veteran was diabetic. In determining whether the duty to assist requires VA to provide an additional examination or to obtain a medical opinion with respect to the Veteran's service connection claim for diabetes, four factors must be considered. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the claimant's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).
The third factor above, establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).
While there is some indication the Veteran has symptoms that are associated with diabetes, there is no evidence that he may have the condition on account of his active service, either on a direct or presumptive basis, as discussed in more detail below. Therefore, an additional VA examination is unnecessary and would only serve to delay the adjudication of his claim. See McLendon, 20 Vet. App. at 83.
The Veteran also had a hearing that was conducted in accordance with the statutory duties of Board personnel to "explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position." 38 C.F.R. § 3.103(c)(2); see also Bryant v. Shinseki, 23 Vet. App. 488 (2010).
As there is no indication that any additional notice or assistance could aid in substantiating this claim, the Board finds VA has satisfied its duties under the VCAA and proceeds with consideration of the Veteran's appeal. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).
Principles Relating to Service Connection
Service connection will be granted for a disability resulting from disease or injury incurred in or caused by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
A Veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iv).
If a claimant was exposed to an herbicide agent during active military, naval, or air service, conditions such as ischemic heart disease and diabetes mellitus shall be presumed to be service-connected even though there is no record of such disease during service. 38 C.F.R. § 3.309(e). Entitlement to service connection for these diseases can also be established presumptively if the disease becomes manifest to a degree of 10 percent within one year of separation from active service, even though there is no evidence of the disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
Notwithstanding the foregoing presumptions, a claimant is not precluded from establishing service connection with proof of direct causation. 38 U.S.C.A. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).
Under 38 C.F.R. § 3.303(b), an alternative method of establishing the nexus requirement for direct causation is through a demonstration of continuity of symptomatology. This method may be used only for the chronic disabilities noted in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
Entitlement to Service Connection for Ischemic Heart Disease
The Veteran claims his currently diagnosed ischemic heart disease is due to herbicide exposure while serving in Korea. The Veteran's personnel records confirm he served in Korea from January 1968 to March 1969 with the 2nd Battalion, 8th Artillery Regiment, 7th Infantry Division.
VA has developed specific procedures to determine whether a claimant was exposed to herbicides while serving in or near the Korean DMZ between April 1, 1968, and August 31, 1971. See VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para 10(o). The AOJ followed these procedures and attempted to confirm the Veteran's claimed herbicide exposure through the JSRRC.
A September 2009 memorandum from a JSRRC Coordinator indicates herbicide exposure could not be confirmed in the Veteran's case because he was not part of a unit identified by the DoD as serving in areas along the Korean DMZ where herbicides were used. Furthermore, a response from DPRIS indicated that the Veteran's unit's barracks were located approximately nine miles from the DMZ, and the unit's reported history did not mention or document any specific duties near the DMZ.
During the November 2014 hearing, the Veteran testified he traveled within 25 meters of the fence along the Korean DMZ several times while serving in Korea, but he has proven to be an unreliable historian regarding his service in and/or near the Korean DMZ. The Veteran testified he crossed the "Bridge of No Return" over the Imjin River with his unit to perform "maneuvers" near the DMZ. However, the "Bridge of No Return" crosses the military demarcation line between North and South Korea and was used for prisoner exchanges after the Korean Armistice Agreement in 1953, and it does not cross the Imjin River as asserted by the Veteran. See Joint Security Area, http://www.newworldencyclopedia.org/entry/Joint_Security_Area (last visited March 3, 2015).
It is not plausible that the Veteran would have crossed the "Bridge of No Return" but returned without causing a major international incident or coming under fire from North Korean forces on their side of the bridge. Yet the Veteran has not reported that his crossing and return caused any repercussions.
The nature of the Veteran's testimony regarding his service in or near the DMZ combined with other minor inconsistencies, such as a reference to the 30th parallel dividing the DMZ, as opposed to the 38th parallel, also raise concerns. Therefore, little evidentiary weight is afforded to his testimony regarding his service in and/or near the DMZ, and the record does not otherwise establish the Veteran was exposed to herbicides during service. Accordingly, the Veteran cannot establish service connection for ischemic heart disease through the presumptive provisions of 38 C.F.R. § 3.307(a)(6)(iv). See 38 C.F.R. § 3.309(e) (stating the requirements of 38 C.F.R. § 3.307(a)(6) must be met to establish service connection due to herbicide exposure on presumptive basis).
Additionally, the Veteran has not asserted that he was directly exposed to herbicides during service. He has not made any statements that suggest he participated in any military operations that involved the use, movement, or storage of herbicides. Thus, there is no evidence to establish direct causation of his ischemic heart disease due to herbicide exposure. Combee, 34 F.3d at 1042.
The record does not show the Veteran's condition manifested in or to a compensable degree within one year of service, or that he has experienced a continuity of symptomatology since his separation from service. The medical evidence of record shows the Veteran started receiving cardiological treatment in the late 1990s, which is approximately 30 years after he left active service.
Ultimately, the presumptive provisions of 38 C.F.R. § 3.309 do not establish entitlement to service connection for ischemic heart disease in the Veteran's case. There is also no evidence of direct causation. Therefore, the Veteran's claim of entitlement to service connection for ischemic heart disease must be denied.
Entitlement to Service Connection for Diabetes Mellitus
During the November 2014 hearing, the Veteran testified he had been diagnosed as having diabetes, but there is no medical evidence of record that confirms his testimony. While he is competent to report a diagnosis given by a medical professional, it is unclear whether he actually has a current diagnosis of diabetes, and there is no evidence that establishes he has it on account of his military service if it is assumed he has the disease. As noted above, the Veteran's exposure to herbicides in Korea could not be confirmed, so he is unable to establish service connection for diabetes through the presumptive provisions of 38 C.F.R. § 3.309(e).
The record also clearly establishes the Veteran did not manifest symptoms of diabetes during service or within one year of service. There is no indication in his service treatment records that he was treated for diabetes-related symptoms during service. In October 1999, the Veteran's treating physician specifically noted the Veteran was not diabetic, which was more than 30 years after he separated from service. Overall, there is no suggestion in the record that the Veteran had symptoms commonly associated with diabetes until January 2008. Furthermore, a January 2009 VA examiner did not find that the Veteran was diabetic after a general examination for compensation and pension purposes. Thus, he is unable to establish service connection for diabetes through the presumptive provisions of 38 C.F.R. § 3.309(a) based on a manifestation of the disease within one year of service.
The record does not include, nor has the Veteran asserted, any other theory of causation for diabetes. As service connection for diabetes cannot be presumed and there is no other evidence establishing direct causation, the Veteran's claim of entitlement to service connection for diabetes must be denied.
Entitlement to Service Connection for an Acquried Psychiatric Disorder
As noted in the introduction, the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder includes both PTSD and depression.
Service connection for PTSD requires: (1) medical evidence diagnosing this disability in accordance with 38 C.F.R. § 4.125(a) (stating that diagnosis of a mental disorder needs to conform to the requisite DSM criteria and should be supported by the findings on the examination report); (2) medical evidence of a link between current symptomatology and the claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f).
A June 2012 VA examiner diagnosed the Veteran as having PTSD. The examiner further noted that the Veteran's PTSD was as least as likely as not incurred in or caused by the stressors claimed by the Veteran. These consisted of a helicopter being shot down by North Korean forces along the DMZ near where he was located; a truck was shot up and five soldiers were killed; sirens would go off when someone tried to "cross the fence;" and an altercation with ROK forces while driving a lieutenant through a check point; and as described in full by the examiner "what gets me is the little babies, not really babies but kids."
When a claimant's stressor is related to fear of hostile military or terrorist activity and PTSD is diagnosed by a VA psychiatrist or psychologist, the claimant's statements alone may establish the occurrence of the claimed stressor if the stressor is consistent with the places, types, and circumstances of the claimant's service. 38 C.F.R. § 3.304(f)(3). However, the Board finds that the provisions of 38 C.F.R. § 3.304(f)(3) do not apply because the Veteran's alleged stressors involving fear of hostile military action are inconsistent with the places, types, and circumstances of his service.
When the Veteran first filed his claim, he attributed his PTSD to a confrontation with ROK soldiers at checkpoint during his service in Korea. He explained a young lieutenant reported to his unit who was unfamiliar with the typical protocol of offering cigarettes and chewing gum to advance through checkpoints controlled by ROK soldiers in and around the DMZ. He further explained that the lieutenant got into an argument with a ROK soldier at a checkpoint, and the confrontation escalated to the point where the ROK soldiers at the checkpoint drew their weapons on the Veteran and the lieutenant, causing them to fear for their lives. While the Veteran's account of this event has remained largely consistent throughout the appeal period, it is not related to a fear of hostile military action but an altercation with allied troops. The Court has held that the hostile military action provision would not apply to an assault by a fellow soldier. Acevedo v. Shinseki, 25 Vet. App. 286 (2012). The Court noted that the regulation was intended to liberalize the stressor confirmation requirements for personnel deployed to war zones and faced with significant combat like stressors in an era of increased insurgent and guerilla warfare. Acevedo v. Shinseki, 25 Vet. App. at 292 (citing 74 Fed. Reg. 42,617. While the regulation is not limited to those in war zones, it does require hostile military or terrorist activity. Acevedo v. Shinseki, 25 Vet. App. at 292-3. An altercation with some soldiers from allied forces of a nation hosting American forces does not constitute hostile military activity. 38 C.F.R. § 3.304(f)(3). The United States and the ROK have remained allies since before the Korean conflict. There is no evidence of record that establishes there were hostilities between U.S. and ROK soldiers during the Veteran's time in Korea.
The Veteran has claimed that he was near a helicopter that crashed after being shot down by North Korean soldiers in the DMZ, and that he witnessed an incident in which an armored truck took enemy fire and five soldiers were killed. As discussed above, the evidence is against a finding that the Veteran was in or near the DMZ. The events have not been verified by the JSRRC; though the Veteran is describing events that would have been significant violations of the cease fire that had endured in Korea since 1953, and would likely have been reported somewhere. These claims were also made several years after his claim was originally denied by the AOJ and were never mentioned during the Veteran's testimony during the November 2014 hearing, during which he was asked about his alleged stressors. He also claims he routinely felt threatened by North Korean soldiers attempting to escape North Korea by climbing over the fence that divided the DMZ and running into the countryside and was traumatized by the plight of children who lived in the war-torn country, but these events do not appear to have involved actual or threatened death or serious injury to the Veteran, or a threat to his physical integrity or the physical integrity of others. 38 C.F.R. § 3.304(f)(3). Therefore, they would require credible supporting evidence; but there is no such evidence in the record. They; therefore, cannot serve as the basis for his PTSD claim.
However, the Veteran's currently diagnosed depression is related to an in-service event. Although he characterized his depression claim as secondary to his service-connected disabilities, an April 2009 VA examiner attributed the Veteran's depression to feelings of grief and remorse regarding the death of a friend the Veteran met in basic training. The Board is required to consider alternate theories of causation for the claimed condition that are raised by the record. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).
The record establishes that the Veteran's friend was killed in Vietnam in April 1968, during the Veteran's period of service. The examiner's opinion indicates that the current depression had its onset in service following this event. Veteran has also consistently attributed feelings of guilt and remorse to his friend's death during treatment provided by VA and in various statements during the course of his appeal. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds the Veteran's currently diagnosed depression is the result of an in-service event or injury, warranting a grant of service connection for the disability. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.
ORDER
Entitlement to service connection for ischemic heart disease is denied.
Entitlement to service connection for diabetes mellitus, type II, is denied.
Entitlement to service connection for PSTD is denied.
Entitlement to service connection for depression is granted.
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Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs